Wanje v Republic (Criminal Appeal E016 of 2024) [2026] KEHC 9145 (KLR) (18 June 2026) (Judgment)

Wanje v Republic (Criminal Appeal E016 of 2024) [2026] KEHC 9145 (KLR) (18 June 2026) (Judgment) Neutral citation: [2026] KEHC 9145 (KLR) Republic of Kenya In the High Court at Malindi Criminal Appeal E016 of 2024 JK Biomdo, J June 18, 2026 Between Kwisa Mlanda Wanje Appellant and Republic Respondent (Being an appeal against the conviction and sentence by Hon. ONALO J.K OLGA (SRM) in Malindi Chief Magistrates Court Criminal Case No. E352 of 2021) Judgment 1.The appellant herein, Kwisha Mlanda Wanje, was convicted on three (3) Counts of the offence of threatening to kill contrary to Section 223 (1) of the Penal Code. The particulars of the offence were as follows;a.Count I, that on 12 April 2021 at around 1800 hours in the evening within Msabaha area in Malindi Sub-County within Kilifi County while armed with a panga, bow and arrows without lawful excuse uttered words, “nimewapa dakika 45 niwakatekate, leo nitachinja mtu hapa”, threatening to kill Patrick Kupalia;b.Count II, that on 12 April 2021 at around 1800 hours in the evening within Msabaha area in Malindi Sub-County within Kilifi County while armed with a panga, bow and arrows without lawful excuse uttered words, “nimewapa dakika 45 niwakatekate, leo nitachinja mtu hapa” threatening to kill Ayub Kadenge;c.Count III, that on 12 April 2021 at around 1800 hours in the evening within Msabaha area in Malindi Sub-County within Kilifi County while armed with a panga, bow and arrows without lawful excuse uttered words, “Nimesema nini mimi. Leo nitachinja mtu hapa” threatening to kill Emanuel Mzungu Ndaa. 2.On 13 July 2023, he was sentenced to a fine of kshs. 100,000/- in default two (2) years imprisonment in respect of each Count with the sentences running consecutively. The appellant was unable to pay the fine and was committed to serve imprisonment in default thereof. 3.Aggrieved by the trial court’s decision, the appellant appealed against the sentence where raised the following grounds:a.Section 223 of the Penal Code does not provide for an option of a fine for the offence of threatening to kill.b.He should benefit from the least severe sentence as contemplated under Article 50 (2) (p) of the Constitution.c.The court be pleased to reduce the volume of the sentence imposed.d.The court finds that time already served in prison constitutes sufficient retribution, he has since reformed and should be released forthwith 4.Both parties filed written submissions which they relied on. The appellant argued that since the three counts are based on a single incident, the trial court ought to have ordered the sentences to run concurrently and not consecutively. He urged the court to allow the appeal and order that the sentences run concurrently and not consecutively. 5.The Respondent opposed the appeal by firstly affirming that the appellant was properly convicted and secondly that the sentences are lawful by dint of Section 14 of the Criminal Procedure Code which gives the court discretion to order sentences to run consecutively. It was further argued that the offence was committed against three separate victims thereby necessitating the separate punishments. He urged the court to dismiss the appeal and uphold the conviction and sentence imposed by the trial court. 6.The appeal is against sentence only. Briefly, the facts of the case are that the appellant is a neighbour to the three complainants who are all related and share a boundary with the appellant in Msabaha area within Kilifi County. On 12 April 2021 at bout 6pm, the appellant first accosted PW1 Patrick Tune Kupalia, the first complaiannt while he was inside his mother’s house and threatened to kill him if he continued encroaching on his land. PW1 fled on seeing the appellant approaching while armed. 7.Immediately thereafter, the appellant proceeded to PW2’s house (Ayub Kadenge Ndaa) while armed with the said weapons where he threatened to kill him if he continued to encroach on his land. From there the accused proceeded to the PW3’s house (Emanuel Mzungu) at about 6.30pm while carrying the weapons, asked him why he had tilled his (appellant’s) land and threatened to kill him if he did not stop. 8.All three reported the matter to the police on 13 April 2021 whereafter the appellant was arrested and charged with the offence. PW4 and PW 5 corroborated the evidence of the complainants. 9.In his defence, the appellant through unsworn statement, testified that on 11 April 2021, he was informed that surveyors have gone to demarcate the boundary between his land and that of the complainants. That the next day on 12 April 2021, he was informed that the complainants’ brought a tractor which had encroached to their (appellant’s) land. DW2 testified that on the material day, he saw the appellant and complainants arguing about the boundary on the land. He stated that the appellant had no weapons. 10.At the conclusion of the trial, the court found that the prosecution had proved the three counts beyond reasonable doubt, convicted the appellant and sentenced him as stated herein before. Analysis and determination 11.Whereas the appellant has not challenged the sentence, this being the first appeal, this court is duty bound to examine and re-evaluate the evidence adduced before the trial court and arrive at its own conclusion whether or not to support the findings of the trial court while bearing in mind that this court did not have the advantage of seeing or hearing the witnesses. Once the court is satisfied as to the appropriateness of the conviction, it will proceed and determine the appeal against sentence. 12.The duty of the first appellate court was set out in the case of Okeno Vs Republic [1972] EA 32, and has been affirmed in various decisions, including the Court of Appeal case of Oiruri Mose Vs R (2013) eKLR. The Court of Appeal, in Kiilu & Another V Republic [2005]1 KLR 174, stated thus;“An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate Court’s own decision on the evidence. The first appellate Court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower Court’s findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the Magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial Court has had the advantage of hearing and seeing the witnesses.” 13.Section 223 (1) of the Penal Code provides as follows on the offence of threats to kill;“Any person who without lawful excuse utters, or directly or indirectly causes any person to receive, a threat, whether in writing or not, to kill any person is guilty of a felony and is liable to imprisonment for ten years.” 14.In order to prove the offence, the prosecution must prove three ingredients; utterance or conveyance of the threat, content being a threat to kill and the absence of a lawful excuse. In Okutto V Republic (Criminal Appeal E016 Of 2024) [2024] KEHC 10044 (KLR) the court held;“The prosecution was required to establish the following ingredients of the charge: that the Appellant without lawful excuse uttered words which amounted to a threat to kill the complainant. The uttering of these words must be made in the context that the complainant perceives that she is under threat of losing her life. The context must come out in the evidence that will be adduced by the prosecution witnesses and the explanation given by the accused in his defence.” 15.The evidence on record is that on 12 April 2021 between 0600 hours and 0630, the appellant who neighboured the three complainants, went to their land which was adjacent to his land and threatened to kill them if they did not rectify the boundary which he had disputed. Evidence shows that there is an outstanding boundary dispute between the two families. From the evidence, it is apparent that the appellant actually went to PW1, PW2, PW3’s on the material day where there was altercation. This was corroborated by PW4, the accused on his defence as well as DW2. In fact, DW2 testified that he found the appellant quarrelling with the complainants about land boundary. 16.The PW1, PW2 and PW3 all testified that the appellant was armed with a panga, bow and arrows when he confronted them, a position they maintained even in cross examination. PW4 corroborated this. This evidence was not rebutted by the appellant. The weapons were, however, not adduced in evidence. Having considered the evidence on record, the court is satisfied that the prosecution proved beyond reasonable doubt all ingredients of the offence and uphold the conviction. 17.This court will now turn to consider the propriety of the sentenced by the trial court. The appellant was convicted and sentenced to a fine of Ksh. 100,000 or 2 years imprisonment in default for each count with the sentences ordered to run consecutively. The appellant has challenged the sentence on three grounds; that section 223 (1) of the penal code does not provide for imposition of a fine, that the sentence is excessive and should be reduced, and that the court deems that he has served the sentence. 18.Sentencing is an exercise of discretion by the trial court. In Bernard Kimani Gacheru vs. Republic (2002) eKLR it was thus held:“It is now settled law, following several authorities by this court and by the High Court that sentence is a matter which rests in the discretion of the trial court. Similarly, sentencing depends on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless the sentence is manifestly high/excessive in the circumstances of the case or that the trial court overlooked some mutual factors or took into account some wrong material or cited upon a wrong principle. Even if the Appellate court feels that the sentence is heavy and the Appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the decision of the trial court on sentence unless anyone of the matter stated i.e. shown to exist.” 19.On the first issue, Section 223 (1) of the Penal Code provides that a person found guilty of the offence is liable for imprisonment for 10 years. The section does not per se provide for imposition of a fine in lieu of imprisonment. However, Section 26 (3) of the Penal Code empowers a court to issue a fine in lieu of imprisonment, save for offences with mandatory minimum sentences. The said Section provides;“26 (3) A person liable to imprisonment for an offence may be sentenced to pay a fine in addition to or in substitution for imprisonment:Provided that— (i) where the law concerned provides for a minimum sentence of imprisonment, a fine shall not be substituted for imprisonment.” 20.The trial court was thus empowered under Section 26 (3) of the Penal Code is issue a fine in lieu of imprisonment for the offences of threatening to kill under Section 223 (1) of the said Act. However, Section 28 (2) of the Penal code provides that where a court orders imprisonment in lieu of a fine, the maximum period of imprisonment for a fine exceeding Ksh. 50,000 shall be one (1) year imprisonment. In this case, the maximum period of imprisonment in lieu of a fine of Ksh. 100,000 is one (1) year imprisonment. Based on this, the court finds that the award of two (2) years imprisonment in lieu of a fine of Ksh. 100,000 is unlawful. 21.On the second issue, as to whether the trial court erred in ordering the sentences to run consecutively or concurrently, the general rule is that a concurrent sentence will normally be appropriate where the offences arise out of the same incident or facts while a consecutive sentence will normally be appropriate where the offences arise out of unrelated facts or incidents. 22.In this case, the facts show that the three counts arose from the same incident i.e it occurred on the same day being the 12 April 2021 at the same time and was due to a similar grievance, that is, a boundary dispute. Based on the above, concurrent sentence would have been appropriate. However, Section 37 of the Penal Code explicitly provides that sentences of fines in lieu of imprisonment shall run consecutively and not concurrently. This was affirmed in the case of Thomas Wakitaata Vs R (1977) KEHC 1 (KLR) the court held;“Sentences in default of payment of a fine cannot be made to run concurrently (see The Republic v Ofunya [1970] EA 78). Where separate fines are imposed, an omnibus default sentence of imprisonment cannot be imposed. Separate default sentences must be passed for each non-payment of fine.” 23.On the question of severity of sentences, the court guided by Bernard Kimani Gacheru Vs. Republic (2002) eKLR finds no reason to interfere with the discretionary power of the trial court regarding the amount of fine imposed for each count. 24.Section 354 (3) of the Criminal Procedure Code empowers the High Court to vary any sentence on appeal. Having found that the trial court erred, the court is duty bound to interfere with the sentences in order to correct the error. 25.In light of the above, the sentences imposed by the trial court in respect of each count are set aside and substituted with the following sentences: -a.Count 1- Fine of ksh. 100,000, or in default one year imprisonment.b.Count 2- Fine of ksh. 100,000, or in default one year imprisonment.c.Count 3- Fine of ksh. 100,000, or in default one year imprisonment 26.All sentences shall run consecutively from the date of conviction being 9 June 2023. 27.The appellant having already served three (3) years imprisonment which is the cumulative period of the sentence in default, he shall be released forthwith unless he is being detained lawfully for any other cause. 28.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 18TH DAY OF JUNE 2026JOSEPH KIPKOECH BIOMDOJUDGE